# Pawan Kumar Pandey @ Bablu & Ors. (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** J. Criminal Appeal No.3952 of 2012
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-pandey-bablu-ors-in-jail-v-state-of-u-p-48848
- **Pages:** 62

## Headnote

G.A., Sri Rahul Mishra, Sri Satyendra Narain
Singh, Sri Ravindra Nath Tripathi, Sri Rajeev
Upadhyay

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 147, 148 149, 302, 120-B, 504,
506 & Section 7 Criminal Law Amendment
Act - The Code of criminal procedure, 1973
- Section 156,157,161,174,313, Arms Act,
1959 - Section 3/25 , The Railways Act -
Section 137,138

Appellants (7 in number) convicted for offence -
FIR lodged by son (witness of fact) of deceased
- dispute related to holding of the post of the
Principal in the institution concerned - deceased
trying hard to get appointment on the post of
Principal being the Senior-most Lecturer in the
institution - Accused-appellant was Manager of
institutions - Rs.10 lacs received from M.P.
Funds in account of Principal - for development
and construction of building - Manager and his
sons tried to misappropriate money - deceased
confronted them - dispute between his father
and Manager of institution ( motive assigned by
him to commit the murder) - All five accused
persons gheraoed his father - surrounded him
and opened fire - total five fires made - could be
more than that - incident witnessed from a
distance
of
ten
paces
.
(Para
-
4,15,20,24,186)

(B) Evidence Law - The Evidence Act, 1872
- Section 11 - when facts not otherwise
relevant
are
relevant
if
they
are
inconsistent with any fact and issue or
relevant fact if by themselves or in
connection with other facts they make the
existence or non-existence of any fact or
issue or relevant fact highly probable or
improbable , Section 103 - burden of proof
as to any particular fact lies on that
person who wishes the Court to believe in
its
existence,Section145
-
Cross
-
examination as to previous statements in
writing ,Section155 - Impeaching credit
of witness.(Para - 217,219)

(C) Criminal Law - The first information
report being ante-time - lapse on the part
of
the officer
posted
in
the
Police
Headquarter - in not making correct
entries in the relevant column of form-13
Exhibit Ka-5 - in itself, would not make
the first information report ante-time or
demolish the prosecution case. (Para -
154)

(D) Criminal Law - Presence of the
witnesses on the spot - contradictions in
the testimonies of PW-1(son of deceased)
and PW-2(Peon of institution) - are minor
which do not go to the root of the matter
and cannot be given undue credence -
held - description in the testimony of PW-1 &
PW-2, th

## Text

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720 INDIAN LAW REPORTS ALLAHABAD SERIES
mother-in-law was seventy eight years of
age
and
the
Supreme
Court
held
impermissibility of reduction of sentence
on the ground of sympathy below the
statutory minimum.

41. As per prison records, the
accused-Rahul Mishra is in custody for
more than five years which includes
remission. Bearing in mind the facts and
circumstances
of
the
case
and
the
occurrence of the year 1997 and that the
accused-Rahul Mishra is in custody for
more than five years, interest of justice
would be met if life imprisonment awarded
to him is reduced to imprisonment for a
period of ten years. Appellants V. K.
Mishra and Neelima Mishra, each of them
have undergone imprisonment of more than
one year. Appellants No.1 and 2 are aged
about seventy and sixty four years and are
said to be suffering from various ailments.
Considering their age and ailments and
facts and circumstances of the case, life
imprisonment imposed on Appellants V. K.
Mishra and Neelima Mishra is also
reduced to imprisonment of seven years
each."

57. In the present case, at the time of
occurrence, appellant Sunil Kumar Yadav,
husband of the deceased was 30 years of
age; Smt Rajola mother-in-law was aged
about 53 years; Rajkumar @ Majhale
younger brother of Sunil Kumar Yadav,
was aged about 23 years; Smt. Ram Dulari
@ Uma, wife of Rajkumar was aged about
21 years and Neetu @ Ram Kumar the
youngest brother of Sunil Kumar was aged
about 20 years. As per the record, all the
appellants are in custody from 31.7.2012.
After six years of marriage the deceased
had died out of burn injuries. No
antemortem injury was found on the person
of the deceased. As per the doctor who had
conducted autopsy the death cannot be said
to be homicidal by definite opinion.

58. Keeping in mind the principle of
sentence under Section 304-B IPC as
enunciated by the Apex Court, in the facts
and circumstances of the present case, the
occurrence which took place in the year
2006 and that the appellants have already
undergone the sentence for more than nine
years, in our considered opinion, interest of
justice would be served if the appellants are
awarded sentence under Section 304-B IPC
to imprisonment for a period of ten years,
each. The conviction of the appellants for
other
offences
and
sentences
of
imprisonment imposed for each offence
awarded by the trial court are hereby
affirmed. All the sentences shall run
concurrently.

59. Resultantly, the appeals are partly
allowed, modifying the judgment and order
dated 31.7.2012 of the learned Sessions
Court to the above extent.

60. Office is directed to certify this
judgement to the court concerned forthwith
to ensure compliance and also to send back
the trial court record.
----------
(2022)06ILR A720
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV,
J.

Criminal Appeal No.3952 of 2012
alongwith
Criminal Appeal No.3239 of 2012
alongwith
Criminal Appeal No.3404 of 2012
6 All. Pawan Kumar Pandey @ Bablu & Ors. Vs. State of U.P.
721
Pawan Kumar Pandey @ Bablu & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Sheshadri Trivedi, Sri Ajay Kumar Pandey, Sri
Anand Kumar Pandey (Amicus Curie), Sri Pratik
J.Nagar, Sri Rajrshi Gupta, Sri Satish Trivedi, Sri
Rizwan Ahmad, Sri Dileep Kuma (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Rahul Mishra, Sri Satyendra Narain
Singh, Sri Ravindra Nath Tripathi, Sri Rajeev
Upadhyay

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 147, 148 149, 302, 120-B, 504,
506 & Section 7 Criminal Law Amendment
Act - The Code of criminal procedure, 1973
- Section 156,157,161,174,313, Arms Act,
1959 - Section 3/25 , The Railways Act -
Section 137,138

Appellants (7 in number) convicted for offence -
FIR lodged by son (witness of fact) of deceased
- dispute related to holding of the post of the
Principal in the institution concerned - deceased
trying hard to get appointment on the post of
Principal being the Senior-most Lecturer in the
institution - Accused-appellant was Manager of
institutions - Rs.10 lacs received from M.P.
Funds in account of Principal - for development
and construction of building - Manager and his
sons tried to misappropriate money - deceased
confronted them - dispute between his father
and Manager of institution ( motive assigned by
him to commit the murder) - All five accused
persons gheraoed his father - surrounded him
and opened fire - total five fires made - could be
more than that - incident witnessed from a
distance
of
ten
paces
.
(Para
-
4,15,20,24,186)

(B) Evidence Law - The Evidence Act, 1872
- Section 11 - when facts not otherwise
relevant
are
relevant
if
they
are
inconsistent with any fact and issue or
relevant fact if by themselves or in
connection with other facts they make the
existence or non-existence of any fact or
issue or relevant fact highly probable or
improbable , Section 103 - burden of proof
as to any particular fact lies on that
person who wishes the Court to believe in
its
existence,Section145
-
Cross
-
examination as to previous statements in
writing ,Section155 - Impeaching credit
of witness.(Para - 217,219)

(C) Criminal Law - The first information
report being ante-time - lapse on the part
of
the officer
posted
in
the
Police
Headquarter - in not making correct
entries in the relevant column of form-13
Exhibit Ka-5 - in itself, would not make
the first information report ante-time or
demolish the prosecution case. (Para -
154)

(D) Criminal Law - Presence of the
witnesses on the spot - contradictions in
the testimonies of PW-1(son of deceased)
and PW-2(Peon of institution) - are minor
which do not go to the root of the matter
and cannot be given undue credence -
held - description in the testimony of PW-1 &
PW-2, the eye witnesses of the occurrence,
corroborated by the surrounding circumstances
of the case such as lodging of the prompt report
by PW-1 and the description given by him about
the occurrence supported by the testimony of
PW-2 is categorical proof of the presence of
these two witnesses on the spot. (Para181,186)

(E) Criminal Law - Ocular Vs. Medical
Evidence - in case of any inconsistencies
or contradiction between medical and
ocular evidence - the ocular testimony of a
witness will have greater evidentiary
value vis-à-vis medical evidence - unless
the oral evidence is totally irreconcilable
with the medical evidence, the oral
evidence would have primacy - It is only
when the contradiction between the two
is so extreme that the medical evidence
completely rules out all possibilities of the
ocular evidence being true at all that the
oral evidence is liable to be discarded -
held - inconsistencies pointed out for the
appellants in the medical evidence vis-a-vis
ocular evidence of PW-1 is not a relevant factor
so as to discard or disbelieve the ocular
evidence.(Para - 203,204)
722 INDIAN LAW REPORTS ALLAHABAD SERIES
(F) Criminal Law - Ballistic Report - mere
fact that the ballistic report did not
support
the
recovery
made
by
the
prosecution would not be a reason to
discard the ocular evidence which is
supported by the medical evidence. (Para
-206)

(G) Criminal Law - Motive - motive though
is not of much importance in a case of
positive ocular evidence, i.e. of eye
witnesses account - but the motive if
proved or established is a very relevant
and important aspect to highlight the
intention of the accused - is relevant to
show that the person who had the motive
to commit the crime actually committed it
- equally settled that such evidence (of
motive) alone would not ordinarily be
sufficient to record conviction - Both
witnesses of fact proved - dispute between the
Manager and Principal ( deceased) - in relation
to some money received from the M.P. Fund -
utilization of which could not be made as per
the wishes of the Manager.(Para -207,209)

(H)
Criminal
Law
-
Flaws
in
the
investigation - any irregularities or even
an illegality during investigation ought not
to be treated as a ground to reject the
prosecution case - need not dilate on this
issue. (Para -211)

(J) Criminal Law - Plea of Alibi of the
accused-appellants - burden of proving
commission of offence by the accused so
as to fasten the liability of guilt on him
remains on the prosecution and would not
be lessened by the mere fact that the
accused had adopted the defence of alibi
- burden of the accused is undoubtedly
heavy - strict proof is required for
establishing the plea of alibi - held - None
of the documents to be believed as genuine
documents so as to accept them as a strict
proof of plea of alibi of the appellants - plea of
alibi taken by the appellants in their statements
under Section 313 Cr.P.C. and the proof brought
in the shape of defence witnesses and the
documentary evidences filed by them is a
concocted story.(Para -218,219,243,249)

HELD:-No error or infirmity in the finding
returned by the trial court on the noted issues,
in holding that the prosecution had proved
lodging of the first information report in a
prompt manner, the presence of the witnesses
on the spot and the motive assigned to the
accused appellants to cause the murder .
Prosecution proved the involvement of all the
appellants
in
the
occurrence
beyond
all
reasonable doubt. Judgement and order passed
by trial court affirmed. (Para - 212,250,252)

Criminal Appeals dismissed. (E-7)

List of Cases cited:-

1. Nem Singh Vs Emperor, 1934 AIR (ALL) 908

2. Guchun Misir & ors. Vs St., 1956 Law Suit
(AII) 245

3. St. of U.P. Vs Moti Ram & anr., 1990 (4) SCC
389

4. Sahib Singh Vs St. of Har., 1997 (7) SCC 231

5.
Malempati
Pattabi
Narendra
etc.
Vs
Ghattamaneni Maruthi Prasad & ors., 2000 (5)
SCC 226

6. St. of U.P. Vs Babu Singh, 1998 (2) ACR 1654

7. Jumni & ors. Vs St. of Har., 2014 (85) ACC
650

8. Ayodhaya Prasad Namdeo Receiver Vs Babu
Ram Prasad, AIR 1954 V.P.

9. Chhanga & ors. Vs St. of U.P., Criminal
Appeal No. 2927 of 1982

10. Roy Fernandes Vs St. of Goa, 2012 (3) SCC
221

11. Ombir Singh Vs St. of U.P., 2020 AIR SC
2609

12. Rajesh Singh & ors. Vs St. of U.P, 2011 (11)
SCC 444

13. St. of U.P. Vs M.K. Anthony,1985 1 SCC 505
6 All. Pawan Kumar Pandey @ Bablu & Ors. Vs. State of U.P.
723
14. Leela Ram (D) Through Duli Chand Vs St. Of
Haryana & anr.,1999 (9) SCC 525

15. Rammi @ Rameshwar Vs St. of M.P., 1999
(8) SCC 649

16. St. of U.P. Vs Hari Chand, 2009 (13) SCC
542

17. Darbara Singh versus St. of Punj., 2012 (10)
SCC 476

18. St. of Raj. Vs Kishore, 1996 (8) SCC 217

19. St. of U.P. Vs Sughar Singh & ors., 1978 (1)
SCC 178

20. Binay Kumar Singh Vs St. of Bihar, 1997 (1)
SCC 283

21. Jayantibhai Bhenkarbhai Vs St. of Guj., 2002
(8) SCC 165

22. Jitendra Kumar Vs St. of Har., 2012 (6) SCC
204

23. Darshan Singh Vs St. of Punj., 2016 (3) SCC
37

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Dileep Kumar, learned
Senior Advocate assisted by Sri Rizwan
Ahmad, learned counsel for the appellants,
Sri Durgesh Kumar Singh, learned counsel
appearing for appellant-Shyam Narain
Pandey in the connected Criminal Appeal
No.3239 of 2012 as also Sri Rahul Mishra
and Sri Rajeev Upadhyay, learned counsels
for the first informant, Sri Roopak
Chaubey, learned AGA for the State.

Introduction:-

2. These appeals are directed against
the judgement and order dated 07.08.2012
passed by the Additional Sessions Judge,
Court No.2, Azamgarh in Sessions Trial
No.435 of 2006 arising out of Case Crime
No.65 of 2006 under Section 147, 148 149,
302, 120-B, 504, 506 IPC and Section 7
Criminal Law Amendment Act, Police
Station
Atraulia,
District
Azamgarh
whereby the appellants (7 in number) have
been convicted for the offence under
Section 147, 148, 302 read with Section
149, 120-B IPC and 7 Criminal Law
Amendment Act. They have been acquitted
for the offence under Section 504 and 506
IPC. Two appellants namely Rajesh Kumar
Pandey and Amit Kumar Pandey in the
connected Sessions Trial No.436 of 2006
and Sessions Trial No.437 of 2006 have
been acquitted for the offence under
Section 3/25 Arms Act.

3. The sentence awarded to the
appellants are under Section 147 for one
month rigorous imprisonment and fine of
Rs.1000/-, the default punishment is one
month additional rigorous imprisonment;
under Section 148 the sentence for two
years rigorous imprisonment and Rs.3000/-
as fine, the default punishment is six
months additional rigorous punishment;
under Section 7 Criminal Law Amendment
Act sentence for six months additional
rigorous imprisonment. Under Section
302/149 read with Section 120-B, the
appellants
have
been
sentenced
for
imprisonment for life and Rs.25,000/- each
towards fine, the default punishment is
three
years
additional
rigorous
imprisonment. All the punishments are to
run concurrently.

PROSECUTION CASE:-

4. The prosecution story unfolded
with the first information report lodged on
28.02.2006 at about 19.45 hrs. by Sri Atul
Tripathi son of deceased Rajendra Prasad
Tripathi resident of P.S. Atraulia, District
724 INDIAN LAW REPORTS ALLAHABAD SERIES
Azamgarh. The written report given by Sri
Atul Tripathi narrates that he and his
deceased father were resident of P.S.
Atraulia
District
Azamgarh.
On
28.02.2006, the first informant (Atul
Tripathi), alongwith Arun Kumar Pandey,
Krishna Kumar Tiwari, Rajkumar Tiwari
and Ram Shiromani Shukla, was waiting at
the 'Kesari Chauraha' for the arrival of his
father from Azamgarh. While they were
standing, his father alighted from a bus and
moved to the pavement towards the EastSouth
side
of
the
crossing
(Kesari
Chauraha) to go to his house alongwith the
first informant and other witnesses.

5. At that point of time, suddenly
from a Bolero car, Sons of Laxmi Narain
Pandey namely Rajesh Kumar Pandey,
Pawan Kumar @ Babloo, Amit Kumar
Pandey, Umesh and Ramesh alighted
carrying weapons in their hands. They
encircled his father and Rajesh Kumar
Pandey, Pawan Kumar @ Babloo and Amit
Kumar Pandey killed his father by firing
from their weapons, Umesh and Ramesh
also fired. Laxmi Narain Pandey and
Shyam Narain Pandey were sitting in the
car and exhorting the assailants that the
deceased should not be spared as he wanted
to become the Principal. While firing, all
the assailants ran away in the said car
towards the west side. Crowd was collected
on the spot.

6. While leaving the dead body of his
father, the first informant went to the police
station to lodge the report. The time of the
incident as noted in the Check report is
28.02.2006 at about 06.00 PM and the
report was lodged on 28.02.2006 at 19.45
hrs, the distance of the police station from
the place of the incident which is 'Kesari
Chauraha', Kasba Atraulia noted therein is
half (1⁄2) kilometer. The original report and
original G.D. were brought in the Court and
G.D. entry of Rapat No.35 was proved to
have been prepared on the same date, the
carbon copy of which was filed on record.
The G.D. entry and the check report were
proved to be in the handwriting and
signature of PW-6, which were marked as
Exhibit Ka-16 & 17. It was stated by PW-6
in his examination-in-chief that the special
report of the crime was sent through
Constable 694 Ram Surat Yadav on
28.02.2006 itself and entry of the same was
made at G.D. No.40 in his handwriting and
signature, which was marked as Exhibit
Ka-18. The paper No.129 of the special
report being in his handwriting and
signature was produced in the Court which
was noted and proved as Exhibit Ka-18. In
cross, PW-6 was contradicted about several
inconsistencies pointed out in the entries
made by him which would be discussed at
the appropriate place of this judgement.

7. At this stage, while noting the
police papers, it may be recorded that the
Investigating Officer proved the memo of
collection of blood stained and plain earth
from the spot as Exhibit Ka-10. On
28.02.2006, another memo was prepared of
recovery of a bag besides the dead body as
Exhibit Ka-2. It was noted in the recovery
memo of bag that one bag Rexin, brown-
black was found lying besides the dead
body. It was seized and opened, a typed
application
signed
by
deceased
Dr.
Rajendra Prasad Tripathi dated 25.02.2006,
a service book of the deceased and a letter
dated 17.02.2006 addressed to the District
Inspector of Schools, Azamgarh wherein
prayer for determination of salary was
made and the date certified as 17.02.2006
was mentioned, were found and seized. It is
further recorded therein that the application
dated 25.02.2006 was addressed to the
Commissioner
Azamgarh,
Division,
6 All. Pawan Kumar Pandey @ Bablu & Ors. Vs. State of U.P.
725
Azamgarh, District Magistrate, Additional
District Magistrate (Revenue and Finances)
and Superintendent of Police, Azamgarh,
wherein it was mentioned that the accused
persons namely Manager Laxmi Narain
Pandey and his sons were giving him threat
to kill him. The application was seized by
the
police
for
including
it
in
the
investigation, whereas bag and service
book were handed over to the first
informant with the direction that he should
keep it preserved and would produce it
whenever needed in the investigation.

8. The arrest of three accused persons
namely Rajesh Kumar Pandey, Umesh
Kumar Pandey and Ramesh Kumar Pandey
who were travelling in the Bolero Car and
the
seizure
of
Bolero
Car
without
registration number used in the occurrence,
was made on 05.03.2006, memo of which
was prepared and exhibited as Exhibit Ka11. It was noted therein that a country made
pistol 315 bore in working condition, with
the description mentioned in the recovery
memo was recovered from the possession
of Rajesh Kumar Pandey. In the chamber
of the pistol one empty cartridge of 315
bore was found and two live cartridges 315
bore from the clothes of Rajesh Kumar
Pandey were recovered. The recovered
articles were sealed but no independent
witness could be found as no-one was
ready to be a witness.

9. The arrest of Laxmi Narain Pandey
and Pawan Kumar Pandey @ Babloo and
Amit Kumar Pandey was made on
06.03.2006 from a public place. Two
country made pistols of 315 bore and 303
bore were recovered from the possession of
Amit Kumar Pandey, wherein one-one live
cartridge was found in the chambers of
each weapon. The description of both the
weapons has been given in the recovery
memo proved and exhibited as Exhibit Ka12. It was noted therein that both the
weapons were in working condition.

10. The inquest of the body was
conducted on the same day i.e. on
28.02.2006 commencing at 21.10 hrs and
ended at 22.25 hrs. The postmortem of the
body was conducted on 01.03.2006 at
about 11.30 AM. The proximate time of
death mentioned therein was about half (1⁄2)
day. On external examination, Doctor had
recorded
that:-
"An average built body, eyes, mouth
closed, clotted blood present over face and
head. Blood oozing out from the nose.
Rigour mortis present in both extremities.
The
postmortem
staining
present
in
different parts."

11. On internal examination, the
doctor has reported that:-

"Temporal, parietal and frontal
bone of right and left side of the head were
fractured, brain lacerated, clotted blood
present, right lung lacerated, about 500 ML
blood present in the chest cavity. Right
chamber of heart was full, left chamber
empty. Semi digested food about 100 ML
was present in the stomach; small intestine
filled by gases and pasty matter. Large
intestine had faecal matter."

12. One copper colour metallic bullet
of 3 cm in length recovered from liver was
handed over to the Constable in a sealed
envelope with sample seal. The clothes of
the deceased were sealed in another bundle
and handed over to the police. The cause of
death was hemorrhage and shock due to
ante-mortem injuries. The postmortem
report was proved as Exhibit Ka-4 by the
doctor PW-3, being in his handwriting and
signature. The charge sheet was submitted
726 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Investigating Officer on completion
of the investigation and on committal,
charges under the above noted sections
were framed against the accused persons
who had denied the same and demanded
trial.

13. The weapons recovered from the
possession of the accused persons were
sent to the ballistic expert, the forensic
laboratory report is on record. The finding
therein indicate that presence of nickle was
noted in two weapons of 315 bore marked
as 1/06 and 2/06 whereas in the 303 bore
pistol marked as 3/06, remnants of firing,
led, copper and nickle was present. The
used cartridges marked as EC-1 could not
be tallied with two weapons of 315 bore
marked as 1/06 and 2/06. The bullet
recovered from the dead body marked EB1 could not be tallied with the weapons
1/06 and 2/06, whereas in the country made
pistol of 303 bore marked as 3/06,
cartridges of 315 bore could not be loaded.
The result is that the weapons recovered
from the accused could not be connected to
the crime. The accused persons, thus, had
been acquitted under Section 3/25 of the
Arms Act.

14. The prosecution had produced 10
witnesses to prove its case and the defence
produced 16 witnesses in their support.

Ocular version of Eye-witnesses :-

15. Amongst the witnesses of fact,
PW-1,
the
first
informant,
in
the
examination in chief, had described the
topography of the place of the incident
namely Kesari Chauraha and stated that his
father (the deceased) was a teacher in
Maruti Vidyalya Inter College and was
appointed as a Lecturer in Social Science in
the said institution in the year 1979. He
remained on the said post till July 1997
when he was appointed as the Principal
being the senior most Lecturer on the
retirement of the then Principal Sri Paras
Nath Mishra. Accused-appellant Laxmi
Narain Pandey was the Manager of the
institutions in the year 2000-01 when Rs.10
lacs were received from the M.P. Funds in
the account of the Principal Rajendra
Prasad Tripathi for development and
construction of building. Laxmi Narain
Pandey, the Manager and his sons were
trying to misappropriate the money and the
deceased had confronted them. On the
pressure created by the Manager the said
money was returned by his father to the
Chief Development Officer, Azamgarh
through cheque. Later on, the said money
was got transferred by the Manager of the
institution in the account of the degree
college which had resulted in a dispute
between his father and the Manager and the
Manager started conspiring to remove his
father from the post of Principal. The
appellant Shyam Narain Pandey was
appointed as Principal in April 2003 on
forged educational testimonials just in
order to remove the deceased from the post
of Principal. Despite the said fact, his father
was working in the institution as a teacher
and the Manager Laxmi Narain Pandey and
his sons, the accused herein, had threatened
him and thrown him out of the institution.

16. A writ petition was filed by his
father (the deceased) in the High Court
wherein educational testimonials of Shyam
Narain Pandey were found forged. After
enquiry on the complaint of the deceased,
Shyam Narain Pandey was removed from
the post of Principal by the Commission. It
is stated therein that in the year 2005, his
father was again appointed as Principal and
his signatures were attested, however, that
order was withdrawn by the Manager by
6 All. Pawan Kumar Pandey @ Bablu & Ors. Vs. State of U.P.
727
illegal means. The salary of the deceased
was also stopped since 2003 and after much
efforts, his father (the deceased) got the
post of Principal.

17. PW-1 stated that the incident had
occurred on 28.02.2006 at about 06.00 PM.
His father went to the office of the District
Inspector of School, Azamgarh to collect
Board copies and the first informant also
accompanied him but he came back early
after his work was completed. While
coming back, his father told to wait for him
at the Kesari Chauraha where he would
reached around 06.00 PM and that he
would bring copies. The first informant
alongwith the persons named in the first
information report was waiting for his
father at the crossing and they were at a
"Takht" on the southern pavement, which
was at the west of the crossing. As soon as
his father got down from the bus and
moved to the tea stall of Ram Singh
towards east, the bus moved ahead, he and
the witnesses moved towards his father, a
Bolero car came from right behind the bus
at the centre of the road on the northern
side of his father, the accused Rajesh,
Amit, Pawan @ Babloo, Ramesh and
Umesh alighted from the car carrying
weapons like country made pistol in their
hands. Pawan @ Babloo, Rajesh and Amit
encircled his father and fired, while his
father was felling down being hit by the
fires, Ramesh and Umesh also fired at his
father. Laxmi Narain Pandey and Shyam
Narain Pandey were exhorting them to kill
while sitting in the car saying that "kill that
bastard, wanting to become Principal." His
father fell down on sustaining injuries and
died. The Bolero Car belonged to Laxmi
Narain Pandey. The first informant got
shocked on seeing the incident. The
accused persons fled away in the car
towards the West.

18. PW-1, in his examination-inchief, further stated that on 01.03.2006, the
District Inspector of School was about to
handover the charge of the Principal of the
institution
to
his
father
as
Board
examinations
were
to
commence
on
04.03.2006 and it was the reason for
conspiring to commit the murder of his
father.

19. PW-1 stated that the report of the
incident was written by him and given in
the police station, his signature and the
contents of the report were proved by PW-1
in the Court, which was marked as Exhibit
Ka-1. PW-1 stated that the Investigating
Officer recorded his statement. The bag of
his father found besides the dead body was
seized by the police and was given in his
custody. One application addressed to the
Commissioner, District Magistrate and
Superintendent of Police taken out from the
bag was seized and a memo was prepared
on which his signature and that of
Ramakant Mishra were taken. Paper No.9
Ka/1, memo taking possession of the bag
and Superdiginama was proved by him
bearing his signature, marked as Exhibit
Ka/2. The recovered letter, paper No.11
Ka/2, was shown to this witness wherein he
had proved the signature and stamp of his
father and stated that it was in the
handwriting and signature of his father
which he could identify and that the same
was seized by the police on the spot, it was
marked as Exhibit Ka-3. The bag was
marked as Material Exhibit-1.

20. The cross-examination of PW-1
was made about the narration by him of the
dispute between his father and Laxmi
Narain Pandey, the Manager of the
institution; i.e. the motive assigned by him
to commit the murder. PW-1 reiterated that
the appointment of Shyam Narain Pandey
728 INDIAN LAW REPORTS ALLAHABAD SERIES
though was made by the Commission but it
was a result of fraud and his father got a
stay order from the High Court about the
appointment of Shyam Narain Pandey.
Shyam Narain Pandey remained Principal
from 2003 till 2005. Further, when Rs.10
lacs were received from M.P. fund, his
father was the Principal and Laxmi Narain
Pandey was the Manager. The said grant
was for Intermediate institution. Laxmi
Narain Pandey was also the Manager of a
Degree College and both the institutions
were located nearby. The money came in
the account of his father but could not be
utilized for the intermediate institution. He
then stated that he cannot say much about
the accounts of the institution. The
suggestion
that
his
father
had
misappropriated the money and on the said
dispute it was returned to the Chief
Development Officer, Azamgarh, had been
categorically denied. It was admitted by
PW-1 that his father was removed from the
post of Principal in April 2003. Further
suggestion
that
a
charge
of
misappropriation of Rs.10 lacs was levelled
against his father and that is why another
Principal was appointed was denied.

21. As to the identity of the accused
person, PW-1 stated that Rajesh, Pawan,
Amit, Umesh and Ramesh are sons of Laxmi
Narain Pandey and he had no knowledge
about the education and occupation of those
persons. Shyam Narain Pandey is not related
to Laxmi Narain Pandey and is resident of
Ballia. On a question put to PW-1 about the
identity of accused Pawan Kumar, he
categorically stated that he knew Pawan
Kumar by name and face and also that he was
son of the Manager Laxmi Narain Pandey
and that he knew Pawan Kumar since 2001.
PW-1 also identified accused Pawan Kumar
standing in the Court and stated that the said
accused hit a bullet in the head of his father.

22. PW-1 stated that his house in
Atraulia was at a distance of half a kilometer
towards north-east side of the Kesari
Chauraha. His father, mother and sister were
occupants of the house. Giving details of the
incident, PW-1 stated that the Bolero car
stopped at the east of the crossing facing
towards west. He was at a distance of ten
paces from the car towards south-west.
Laxmi Narain Pandey was sitting inside the
car in the middle seat at the southern gate and
the gate was open and he could clearly see
Laxmi Narain Pandey from the place where
he was standing. Laxmi Narain Pandey was
taking his body out of the car while exhorting
other accused persons to kill. He knew Laxmi
Narain Pandey for the last about ten years.

23. He further stated that there was a
day light at the time of the incident, electric
light was not on by then and he made no
mistake in identification of Laxmi Narain
Pandey. A suggestion was given that Laxmi
Narain Pandey and Pawan Kumar were
lodged in the District Jail, Lucknow few days
from prior to the incident till the date of the
incident, had been categorically denied by
PW-1.

24. In cross, PW-1 was confronted
about the presence of crowd at the Kesari
Chauraha in the evening hours and that the
police usually remain present for checking
purpose. He though accepted that Kesari
Chauraha used to become crowded by 3.00
PM and it was a crossing for the big and
small vehicles running on AzamgarhFaizabad road but stated that police was not
present on the spot. He further stated that
there was no jam like situation and that the
Bolero Car stayed for 5-6 minutes at the
site of the incident and that no members of
public threw stones on Bolero car. He
further stated, on confrontation, that when
bus stopped, his father got down alone and
6 All. Pawan Kumar Pandey @ Bablu & Ors. Vs. State of U.P.
729
bus moved ahead, his father was not caught
and fired but the accused surrounded him
and then opened fire. All five accused
persons gheraoed his father. PW-1 also
gave the direction in which the accused
persons were standing while encircling his
father and the distance of them from the
deceased. He further stated that as per his
knowledge, total five fires were made but it
could be more than that. His father fell
down after being hit by the bullet, facing
downwards. The incident was witnessed by
him from a distance of ten paces and while
he was about to move forward towards his
father, Ramesh and Umesh opened fire and
that time deceased was falling. After the
accused left in the car, he went near his
father but crowd did not allow him to touch
the deceased.

25. On a query made from PW-1 as to
whether his clothes were soaked with the
blood of his father, he stated that he could
not hug his father though he wanted to,
people were holding him while he was
sitting besides the dead body of his father
for about 10-15 minutes. After 15 minutes,
when people left him, he kept on crying for
5-10 minutes but did not touch his father.
In the meantime, his mother and sister also
reached the spot. His house was at a
distance of half a kilometer on the southern
side from the police station Atraulia. His
mother and sister became unconscious and
remained lying as such for about 10
minutes but the police of the Police Station
Atraulia did not reach by then.

26. PW-1 stated that he then wrote the
report while sitting at a Samadhi Sthal
Balakdas which was about 10-12 feet on
the northern side of the place of the
incident. It took about 20 minutes to write
the report and then he went to the police
station, by that time even the police of the
Police Station Atraulia did not reach there.
It took him about 15 minutes to reach the
police station as he went on foot and when
he gave the report, the police came to know
that a murder had been committed on the
spot.

27. After lodging of the report, police
personnel came on foot with him, they
were 3-4 in number. The Investigating
Officer reached after half an hour of
reaching other police personnel on the spot
and he came by an official Jeep. After 2-4
minutes of coming to the place of the
incident, the Investigating Officer started
inquest. The body was then moved from
the place of the incident and it must be
about 10.30 PM when the police took the
body to Azamgarh. PW-1 stated that by the
time body was sealed and sent away, the
police of many police stations reached at
the spot and some officers also came. They
took the sealed body towards east and then
put it in a vehicle which he could not see.
PW-1 stated that he remained at the place
of the incident even after the body was
taken away and he was there till 12.00 hrs.

28. In cross, PW-1 was confronted
about the proof of his father travelling by
bus on the fateful day. He stated that his
father alighted from a Roadways bus. The
bag of his father was given in his custody
by the police after preparation of the memo
and no bus ticket was found inside it.
About Rs.250/- were found in the pocket of
pant of his father which was given to him
without any paper work. Neither the bus
ticket nor any pass of traveling by the bus
was recovered from the clothes of his father
(the deceased). On further confrontation, he
stated that the fact that his father was about
to receive the charge of Examination
Controller on 01.03.2006 could be known
to him from his father and his father told
730 INDIAN LAW REPORTS ALLAHABAD SERIES
him that he was going to bring Board
copies from the office of the District
Inspector of School, Azamgarh. He says
that he also accompanied his father but he
came back early and could not know as to
whether copies were received by his father.
He had denied the suggestion that his father
did not alight from the bus at the Kesari
Chauraha on the date of the incident.

29. PW-1 was further confronted
about the place of the residence of other
witnesses and that is how about the
presence of the witnesses on the spot. PW1 stated that when the Investigating Officer
recorded his statement, all four witnesses
were not with him and they went with his
mother and sister and, thereafter, he did not
know where they had gone and that they
did not meet the Investigating Officer in
front of him. Affidavit of four witnesses
given in the office of the District
Magistrate were put to PW-1 to confront
that those affidavits were filed to put undue
pressure on the witnesses. Suggestion about
the enmity of the deceased with other
persons was also given to PW-1 in order to
project that some unknown persons had
committed the offence on account of land
dispute and the appellants had been falsely
implicated due to enmity. It has also come
in the evidence of PW-1 that on the date of
the incident, the Ex-Principal of the
institution namely Sri Paras Nath Mishra
had died. The suggestion that he went to
the house of Sri Paras Nath Mishra was
denied by him.

30. On a suggestion that Rajkumar
Tiwari, who is witness in the instant case,
was peon in the institution and his salary
was withheld by accused Shyam Narain
Pandey when he was Principal as Rajkumar
Tiwari used to remain absent and did not
work
properly,
PW-1
showed
his
ignorance. He was again confronted on
various missing details in the description
given in the first information report and his
previous statement under Section 161
Cr.P.C. which he replied and stated that the
report was written by him on his own and
no-one was helping him nor he asked
anyone. A suggestion was also given to
PW-1 that a bus stand was there on the
eastern side at a distance of about half
kilometer from the Kesari Chauraha and
buses used to stop there.

31. About the posting of his father in
the institution concerned, when confronted,
PW-1 reiterated that his father was a
Lecturer in the institution since the year
1979. When confronted about the nature of
his appointment and the post that whether
his father was about to become Principal or
the Examination Controller, PW-1 stated
that whatever had been stated by him was
informed by his father and he did not know
much about the post held by his father. The
suggestion that his father was absent from
the institution for a long time i.e. from
14.04.2003 was denied by PW-1. He
further stated that he did not know as to
whether another Senior Lecturer Sri Ram
Naval Pandey was the Principal of the
institution on the date of the incident.
About knowing the witnesses Krishna
Kumar Tiwari and Arun Kumar, he stated
that he knew them as they were appointed
in place of their father on compassionate
ground. All other witnesses Ram Shravan
Pandey and Rajkumar Tiwari were Peons
in the institution and were close to his
father. He denied that the name of accused
Shyam Narain Pandey was added at the
instance of witnesses Rajkumar Tiwari and
Ram Siromani Pandey.

32. On a query made by the Court that
the post of Principal and Examination
Controller were two different posts and in
6 All. Pawan Kumar Pandey @ Bablu & Ors. Vs. State of U.P.
731
the examination-in-chief PW-1 stated that
on 01.03.2006, the District Inspector of
School was about to handover charge of the
Principal to his father whereas in the cross
he stated that it was the charge of the post
of Examination Controller, PW-1 explained
that it might have been stated because of
the confusion but the correct fact was that
his father was to be handed over the charge
of the post of Examination Controller by
the District Inspector of School. The
suggestion that accused Shyam Narain
Pandey had sworn an affidavit before the
Oath Commissioner, High Court in a case
at about 07.10 PM, on the date of the
incident, was repelled by PW-1 saying that
he had no knowledge of the same but he
had categorically denied the suggestion that
Shyam
Narain
Pandey
was
falsely
implicated at the instance of Krishna
Kumar Tiwari and Raj Kumar Tiwari. PW1 categorically denied the suggestion that
he was not present on the spot. PW-1 lastly
denied that his father was coming back
from the house of the Ex. Principal Sri
Paras Nath Mishra and then the incident
had occurred.

33. PW-2 Rajkumar Tiwari, a resident
of P.S. Atraulia District Azamgarh stated
on oath that he was working as Peon in
Matruti Inter College since 1970-71 and
had superannuated on 30th April 2006. In
the year 1996-97, Sri Paras Nath Mishra
was the Principal of the institution. After
retirement of Sri Paras Nath Mishra on
30.06.1997, Sri Rajendra Prasad Tripathi
who was the Senior-most Lecturer became
officiating Principal in July 1997 and he
continued to work as such for about three
years, his tenure was about 7 years and
there was no dispute in the initial three
years. PW-2 pointing to the accused Laxmi
Narain Pandey present in the Court, stated
that he was the Manager of the institution
who had created an atmosphere of
corruption and fear in the institution, he
was a man of criminal nature and became
Manager by illegal means.

34.